California-Santa Clara-3990 Freedom Circle Sublease - Transmeta Corp. and Moscape Inc.
SUBLEASE
Sublandlord:
Transmeta Corporation Master Premises:
3990 Freedom Circle
Santa Clara, California
Subtenant: Moscape, Inc. Date: November 1, 1999
1. Parties:
This Sublease is made and entered into as of November 1, 1999 by and
between Transmeta Corporation ("Sublandlord") and Moscape, Inc.
("Subtenant"), under the Master Lease dated April 2, 1998 between John
Arrillaga, Trustee, or his Successor Trustee, UTA, dated July 20, 1977
(John Arrillaga Survivor's Trust) as amended, and Richard T. Peery,
Trustee, or his successor Trustee, UTA, dated July 20, 1977 (Richard T.
Peery Separate Property Trust) as amended, hereinafter called Landlord, as
"Landlord", and Sublandlord as "Tenant", ("Master Lease"). A copy of the
Master Lease is attached hereto as "Exhibit B" and incorporated herein by
this reference. Pursuant to the Master Lease, Sublandlord leases all of
that certain Forty-five Thousand +/- (45,000+/-) square foot, two-story
building located at 3990 Freedom Circle, Santa Clara, California (the
"Master Premises").
2. Provisions Constituting Sublease:
2.1 This Sublease is subject to all of the terms and conditions of the
Master Lease. Subtenant hereby assumes and agrees to perform all of the
obligations of "Tenant" under the Master Lease to the extent said
obligations apply to the Subleased Premises and Subtenant's use of the
Common Areas as depicted in "Exhibit A" attached, except as specifically
set forth herein. Sublandlord hereby agrees to use reasonable efforts to
cause Landlord under the Master Lease to perform all of the obligations of
Landlord thereunder to the extent said obligations apply to the Subleased
Premises and Subtenant's use of the Common Areas. Neither Subtenant nor its
employees, agents, contractors or invitees ("Subtenant's Agents") shall
commit on the Subleased Premises or on any other portion of the Master
Premises any act or omission which violates the rights of any other party
or parties hereto who are affected thereby. Neither of the parties hereto
will, by renegotiation of the Master Lease assignment, subletting, default
or any other voluntary action, avoid or seek to avoid the observance or
performance of the terms to be observed or performed hereunder by such
party, but will at all times in good faith assist in carrying out all the
terms of this Sublease and in taking all such action as may be necessary or
appropriate to protect the rights of the other party or parties hereto who
are affected thereby against impairment. Nothing contained in this Section
2.1 or elsewhere in this Sublease shall prevent or prohibit Sublandlord
from assigning its interest in this Sublease or subletting portions of the
Master Premises other than the Subleased Premises.
2.2 With respect to all of the provisions of the Master Lease incorporated
into this Sublease, wherever the word "Premises" is used in the Master
Lease, for purposes of this Sublease, the word "Subleased Premises" shall
be substituted; wherever in the Master Lease the word "Tenant" appears, for
purposes of this Sublease, the word "Subtenant" shall be substituted;
wherever in the Master Lease the word "Landlord" appears, for the purposes
of this Sublease,
<PAGE> 2
the word "Sublandlord" shall be substituted. Notwithstanding the foregoing,
the word "Landlord" in Paragraph 5 of the Master Lease shall be deemed to
refer to "Master Landlord", and the word "Sublandlord" shall not be
substituted therefor. All of the terms and conditions contained in the
Master Lease are incorporated herein, except as specifically provided
below, and the terms and conditions of this Sublease, except the following
paragraphs of the Master Lease which shall solely be the obligation of
Sublandlord: the description of the Premises leased pursuant to the Master
Lease, Paragraphs 2, 3, 4A, 4F, 4G, 34, 41, 43, 54, 55 and replace "Exhibit
B" with "Exhibit A of the Sublease" in Paragraph 44.
3. Subleased Premises and Rent:
3.1 Subleased Premises:
Sublandlord leases to Subtenant and Subtenant leases from Sublandlord the
Subleased Premises upon all of the terms, covenants and conditions
contained in the Sublease. The Subleased Premises consists of approximately
11,400 +/- square feet of the MasteR Premises and as shown in red on
"Exhibit A" attached hereto. Sublandlord represents and warrants to
Subtenant that Sublandlord is presently in possession of the Subleased
Premises and has been continuously since July 1, 1998.
3.2 Rent:
<TABLE>
<CAPTION>
11/1/1999-3/31/2000 No Base Rent*
-------------
<S> <C>
4/1/2000--6/30/2000 $1.86 NNN $21,204.00
7/1/2000--6/30/2001 $2.45 NNN $27,930.00
7/1/2001--9/30/2001 $2.55 NNN $29,070.00
</TABLE>
* Tenant is responsible for all additional rent during this period,
however, as well as later periods.
Subtenant shall pay to Sublandlord rent for the Subleased Premises without
deductions, offset, prior notice or demand. Rent shall be payable by
Subtenant to Sublandlord in consecutive monthly installments on or before
the first day of each calendar month during the Sublease Term. This is a
net rent. As set forth in the Master Lease, Subtenant shall be responsible
for all additional rent, except as otherwise expressly set forth within,
including, but not limited to Paragraphs 7, 10, 11, 12 and 15. All such
expenses shall be determined on a pro-rata basis and paid monthly to
Sublandlord as additional rent. The obligations of Sublandlord and
Subtenant concerning additional rent will be adjusted in the same manner as
described in the Master Lease. All personal property insurance of Subtenant
shall be the sole responsibility of the Subtenant. Sublandlord shall not be
responsible for providing janitorial for Subleased Premises however,
Sublandlord shall be responsible for maintaining the Common Areas as
identified in "Exhibit A" including, but not limited to, the restrooms.
Maintenance shall be provided five (5) days a week.
3.3. Security Deposit:
In addition to the Rent specified above, Subtenant shall pay to Sublandlord
$20,151.00 as a non-interest bearing Security Deposit. Sublandlord shall
return to Subtenant, within ten days after Subtenant has vacated the
Subleased Premises, the Security Deposit less any sums due and owing to
Sublandlord and/or the cost to Sublandlord to cure any other of the
Subtenant's breaches of the Sublease, all in accordance with California
Civil Code Section 1950.7 or any successor statute thereto.
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<PAGE> 3
3.4 Upon execution of the Sublease Agreement by both parties, Subtenant shall
pay to Sublandlord the Security Deposit and the first month's base rent
applicable to Month 1 of the term and additional rent.
4. Rights of Access and Use:
4.1 Use:
Subtenant shall use the Subleased Premises only for those purposes
permitted in the Master Lease, unless Sublandlord and Master Landlord
consent in writing to other uses prior to the commencement thereof.
5. Sublease Term:
5.1 Sublease Term:
The Sublease Term shall commence on the later of November 1, 1999, subject
to adjustment as set forth in Paragraph 5.3 ("Commencement Date") and
terminate twenty three (23) months after Sublease commencement. In no event
shall the Sublease Term extend beyond the Term of the Master Lease.
5.1 (a) Option to Extend:
The Subtenant shall not have an automatic option to extend beyond the
initial term of this sublease. However, in the event that sublandlord deems
that the premises are excess to its needs, subtenant shall have the right
of first refusal. Subtenant will notify sublandlord of its desires ninety
(90) prior to the termination of this lease.
5.2 Upon the Commencement Date, Sublandlord shall deliver the Subleased
Premises in "as-is" condition.
5.3 Inability to Deliver Possession:
In the event Sublandlord is unable to deliver possession of the Subleased
Premises on November 1, 1999, Sublandlord shall not be liable for any
damage caused thereby, nor shall this Sublease be void or voidable but
Subtenant shall not be liable for Rent until such time as Sublandlord
offers to deliver possession of the Subleased Premises to Subtenant, but
the term hereof shall not be extended by such delay, provided, however,
that if Sublandlord cannot deliver possession within thirty (30) days
following November 1, 1999, then Subtenant may, at its option, terminate
this Sublease by giving written notice to Sublandlord. If Subtenant, with
Sublandlord's consent, takes possession prior to commencement of the term,
Subtenant shall do so subject to all the covenants and conditions hereof
and shall pay Rent for the period ending with the commencement of the term
at the same rental as that prescribed for the first month of the term
prorated at the rate of 1/30th thereof per day.
6. Parking:
Sublandlord will grant Subtenant their prorate share of the parking spaces
granted to the building by the Master Lease. Said proration to be
determined by dividing square footage of Subleased Premises by the total
Master Premises' square footage then multiplying this percent by the total
parking spaces granted.
7. Tenant Improvements:
Sublandlord shall deliver the Premises in "as-is" condition. All other
improvements shall be
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<PAGE> 4
at Subtenant's sole cost and expense and Subtenant shall secure both
Sublandlord's and Master Landlord's prior written consent which consent
shall not be unreasonably withheld or delayed. Sublandlord agrees that
Sublandlord shall not unreasonably withhold its consent to the tenant
improvements described in Exhibit D to this Sublease so long as the final
working drawings and specifications for such tenant improvements which are
submitted to Sublandlord for its final approval are materially consistent
with the tenant improvements described in Exhibit D. Sublandlord shall
notify Subtenant at the time of Sublandlord's review and approval of such
tenant improvements whether Subtenant will be required to remove the tenant
improvements whether Subtenant will be required to remove the tenant
improvements from the Subleased Premises at the expiration or sooner
termination of this Sublease and/or restore the Subleased Premises to their
condition existing as of the date of this Sublease. With respect to any
other alterations or improvements which Subtenant desires to make to the
Subleased Premises during the term of this Sublease, Sublandlord shall
notify Subtenant at the time of its approval of such alterations or
improvements whether Subtenant will be required to remove such alterations
or improvements from the Subleased Premises at the expiration or sooner
termination of this Sublease and/or restore the Subleased Premises to their
condition existing as of the date of this Sublease.
8. Alterations:
Subtenant shall not make any alterations to the interior or exterior of the
Premises without prior written consent of Sublandlord, which consent shall
not be unreasonably withheld or delayed.
9. Notices:
Any notice or report required or desired to be given regarding this
Sublease shall be in writing, may be given by personal delivery, by
facsimile, by courier service or by certified mail, return receipt
requested. Any notice or report addressed to Subtenant or to Sublandlord at
the address shown on the signature page hereof, as appropriate, shall be
deemed to have been given (i) on the date the U.S. Post Office certifies
delivery, nondeliverability or refusal of delivery if such notice or report
was deposited in the United States mail, certified, postage prepaid, (ii)
when delivered if given by personal delivery, (iii) on the business day
following deposit, cost prepaid, with Federal Express or similar private
carrier, if next business day delivery was requested, and (iv) in all other
cases when actually received. Either party may change its address by giving
notice of the same in accordance with this Paragraph. The term "business
day" shall mean a day on which the carrier used (Federal Express or other
private carrier, or the U.S. Postal Service, as applicable) delivers,
whether by special request or in the ordinary course of operations.
All notices, demands, requests, advices or designations by Subtenant or
Sublandlord shall be addressed to Sublandlord Richard Apcar, at its offices
at Transmeta Corporation, 2540 Mission College Boulevard, Santa Clara,
California 95054, and to Subtenant Chandra Somanathan, at its offices at
Moscape, Inc., 3990 Freedom Circle, Santa Clara, California 95054.
10. Agency:
Subtenant and Sublandlord acknowledge that there are no real estate brokers
involved in this transaction.
l1. Broker Fee:
4
<PAGE> 5
No real estate commission shall be paid.
12. Broker:
Each party warrants and represents to the other party hereto that it has
not dealt with any brokers in connection with this Sublease. Each party
hereby indemnifies and holds the other party harmless from any and all
loss, damage, claim, liability, cost or expense (including, but not limited
to, reasonable attorneys' fees, expenses and court costs) arising out of or
in connection with any breach of the foregoing warranty and representation.
The provisions of this Paragraph shall survive the expiration or earlier
termination of this Sublease.
l3. Assignment and Subletting:
Notwithstanding any provision to the contrary in this Sublease, including,
without limitation, any provision of the Master Lease incorporated herein,
Sublandlord shall not withhold its consent to any assignment or subletting
which either does not require the consent of Master Landlord or which
requires the consent of Master Landlord and to which Master Landlord
consents. If Subtenant desires to Sublease or assign the Subleased
Premises, Sublandlord shall have right of first refusal to lease or assign
such space within thirty (30) days from notification by Subtenant. Upon
receiving written notice of Subtenant's desire to Sublease, Sublandlord
shall respond in writing its decision to Sublease within ten (10) days. If
Subtenant does not sublease or assign the Premises within 30 days of
Sublandlord's rejection of such offer, then this right of refusal process
shall be repeated.
14. Waiver of Subrogation:
Notwithstanding any provision to the contrary in this Sublease, including,
without limitation, any provision incorporated from the Master Lease, the
parties hereto release each other and their respective agents, employees,
successors, assignees and subtenants from all liability for damage to any
property that is caused by or results from a risk which is actually insured
against, without regard to the negligence or willful misconduct of the
entity so released. Each party shall use its best efforts to cause each
insurance policy it obtains to provide that the insurer thereunder waives
all right of recovery by way of subrogation as required herein in
connection with any injury or damage covered by the policy. If such
insurance policy cannot be obtained with such waiver of subrogation, or if
such waiver of subrogation is only available at additional cost and the
party for whose benefit the waiver is not obtained does not pay such
additional cost, then the party obtaining such insurance shall immediately
notify the other party of that fact.
15. Waiver of Subrogation in Master Lease:
Upon Master Landlord's execution of the Consent to Sublease which follows
this Sublease, the waiver of subrogation provision in Paragraph 14 of the
Master Lease, notwithstanding any provision to the contrary in this
Sublease or the Master Lease, shall be effective between Master Landlord
and Subtenant with respect to insured casualties regarding the Subleased
Premises as well as between Master Landlord and Sublandlord.
16. Master Lease Enforcement:
Sublandlord shall diligently attempt to enforce Master Landlord's
obligations under the
5
<PAGE> 6
Master Lease with respect to or affecting the Master Premises and/or any
common areas used (or available for use by Subtenant). Subtenant
acknowledges that Sublandlord is under no duty to make repairs or
improvements to the Subleased Premises except as specifically set forth in
the Master Lease.
17. Sublandlord's Cooperation:
If Master Landlord's consent is required for any action which Subtenant
desires to take under this Sublease, Sublandlord shall cooperate with
Subtenant to obtain such consent. If Master Landlord fails to perform any
of its obligations under the Master Lease, Sublandlord, at the request of
Subtenant, shall use its good faith efforts to obtain Master Landlord's
performance of such obligation(s). If the Master Lease terminates as the
result of a breach by Sublandlord, Sublandlord will be liable to Subtenant
for damages suffered as a result of such termination
18. Subtenant's Corporate Authority:
Subtenant represents (a) that it is a corporation organized and existing
under the laws of the State of Delaware and is qualified to do business in
the State of California; (b) that this Sublease has been duly authorized by
all required corporate actions; and (c) that the persons executing the
Sublease are authorized to execute this Sublease on behalf of Subtenant.
19. If either party commences an action against the other for enforcement of or
in connection with this Sublease, the prevailing party shall be entitled to
receive costs of suit and reasonable attorney fees incurred in such action.
20. Consent:
This Sublease is subject to consent of Master Landlord. Sublandlord and
Subtenant shall use reasonable efforts to secure Master Landlord's consent.
Sublandlord: Transmeta Corporation
BY: /s/ Rich Stiller BY:
------------------------------- --------------------------------
TITLE: VP of Corp. Svcs. TITLE:
---------------------------- -----------------------------
DATE: 11/24/99 DATE:
----------------------------- ------------------------------
Subtenant: Moscape, Inc.
BY: /s/ Chandra Somanathan BY:
------------------------------- --------------------------------
TITLE: Vice President TITLE:
---------------------------- -----------------------------
DATE: 11/16/99 DATE:
----------------------------- ------------------------------
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<PAGE> 7
NOTICE TO SUBLANDLORD AND SUBTENANT: CPS IS NOT AUTHORIZED TO GIVE LEGAL OR TAX
ADVICE; NOTHING CONTAINED IN THIS SUBLEASE FOR ANY DISCUSSIONS BETWEEN CPS AND
SUBLANDLORD AND SUBTENANT SHALL BE DEEMED TO BE A REPRESENTATION OR
RECOMMENDATION BY CPS, OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL IMPACT OR TAX
CONSEQUENCES OF THIS DOCUMENT OR ANY TRANSACTION RELATING THERETO. ALL PARTIES
ARE ENCOURAGED TO CONSULT WITH THEIR INDEPENDENT FINANCIAL CONSULTANTS AND/OR
ATTORNEYS REGARDING THE TRANSACTION CONTEMPLATED BY THIS PROPOSAL.
CONSENT BY MASTER LANDLORD: The undersigned, Landlord under the Master Lease in
Exhibit "C", hereby consents to the subletting of the Premises described herein
on the terms and conditions contained in this Sublease. This consent shall apply
only to this Sublease and shall not be deemed to be a consent to any other
Sublease.
MASTER LANDLORD:
BY:________________________________ BY:________________________________
TITLE:_____________________________ TITLE:_____________________________
DATE:______________________________ DATE:_____________________________
<PAGE> 8
December 4, 1999
MR. RICHARD APCAR
TRANSMETA CORPORATION
3940 Freedom Circle
Santa Clara, CA 95054
Re: CONSENT TO SUBLEASE TO MOSCAPE, INC., A DELAWARE CORPORATION FOR A
PERIOD OF ONE YEAR ELEVEN MONTHS, COMMENCING NOVEMBER 1, 1999 AND
TERMINATING SEPTEMBER 30, 2001
Gentlemen:
This letter is written with regard to your proposed sublease of approximately
11,400 square feet of space (as shown on Exhibit A attached hereto) (the "Sublet
Premises") of the 45,000 square feet of space leased by Tenant at 3990 Freedom
Circle, Santa Clara, California, under Lease Agreement dated April 2, 1998
("Master Lease"), by and between John Arrillaga Separate Property Trust and
Richard T. Peery Separate Property Trust ("Master Landlord"), and TRANSMETA
CORPORATION, A CALIFORNIA CORPORATION ("TENANT"), which Tenant is proposing to
sublease to MOSCAPE, INC. A DELAWARE CORPORATION ("SUBTENANT") on the terms and
conditions set forth in the proposed Sublease dated November 1, 1999, submitted
by Tenant to Master Landlord on November 24, 1999 (the "Sublease").
Pursuant to Master Lease Paragraph 19 ("Assignment and Subletting") Master
Landlord hereby approves Tenant's subleasing said space to Subtenant, under the
Sublease, subject to the following terms and conditions:
1. Master Landlord's Consent shall in no way void or alter any of the terms
of the Lease by and between Master Landlord and Tenant, nor shall this
Consent alter or diminish in any way Tenant's obligations to Master
Landlord.
2. Tenant shall not give Subtenant any rights or privileges in excess of
those given Tenant under the terms of the Master Lease.
3. Subtenant shall not have a separate address from the address of the
Premises. Therefore, Tenant shall provide Subtenant with internal mail
delivery. Tenant and Subtenant shall share (the prorata shares to be
determined in a separate agreement between Tenant and Subtenant) the
existing signage allocated to Tenant for the Premises.
4. Master Landlord has not reviewed the terms of any agreement between
Tenant and Subtenant, and in approving said Sublease, Master Landlord is
in no way approving any term, covenant or condition therein contained,
and said Sublease is subject and
<PAGE> 9
subordinate to all terms, covenants and conditions of the Master Lease.
Master Landlord shall not be bound by any agreement other than the terms
of the Master Lease between Master Landlord and Tenant. In the event of
conflict in the terms, covenants and conditions between the Sublease and
the Master Lease, the terms, covenants and conditions of the Master
Lease shall prevail and take precedence over said Sublease. Master
Landlord does not make any warranties or representations as to the
condition of the Leased Premises or the terms of the Lease between
Master Landlord and Tenant. This Consent to Sublease shall in no event
be construed as consent to any future sublease agreement (including any
extensions and/or amendments to the current Sublease) between Tenant and
Subtenant, or any other party; and any future sublease agreement
(including any extensions and/or amendments to the current Sublease)
between Tenant and Subtenant, or any other party shall require the prior
written consent of Master Landlord. Under no circumstances will Master
Landlord consent to a sub-sublease or assignment under the Sublease.
5. A. It is agreed by all parties hereto that in the event the Master Lease
is rejected by Tenant under a Chapter 11 or 7 proceeding and/or Master
Landlord terminates the Master Lease, pursuant to any right therein
contained, said Sublease shall automatically terminate simultaneously
with the Master Lease. Notwithstanding anything to the contrary set
forth above, Master Landlord, at Master Landlord's sole option and
election, may choose to allow Subtenant to remain in possession of the
Sublet Premises leased under said Sublease subject to all terms,
covenants and conditions of said Master Lease by giving Subtenant
written notice prior to the effective date of termination of said Master
Lease, of Master Landlord's election to allow Subtenant to remain in
possession of the Sublet Premises in which event Subtenant shall be
entitled and obligated to remain in possession of the Sublet Premises
under the terms of said Sublease, subject to all terms, covenants and
conditions of the Master Lease, including, without limitation to,
payment of Basic Rent at the greater of: (i) the rate provided for in
the Master Lease, or (ii) the rate provided for in the Sublease. Such
election by Master Landlord shall not operate as a waiver of any claims
Master Landlord may have against Tenant. Following such written notice
by Master Landlord Subtenant shall then, as of the effective date of
said termination of said Master Lease, be liable to and shall attorn in
writing directly to Master Landlord as though said Sublease were
executed directly between Master Landlord and Subtenant; provided,
however, it is specifically agreed between the parties hereto, that
whether Master Landlord elects to allow Subtenant to remain in
possession of the Sublet Premises under the terms of the Sublease,
subject to the Master Lease, or allow said Sublease to automatically
terminate simultaneously with the Master Lease, Master Landlord shall
not, in any event, nor under any circumstances be responsible or liable
to Subtenant for (i) the return of any security deposit paid by
Subtenant to Tenant, nor shall Subtenant be given credit for any prepaid
rental or other monetary consideration paid by Subtenant to Tenant under
said Sublease; (ii) any other claim or damage of any kind or nature
whatsoever by reason of or in connection with Master Landlord's
termination of said Master Lease and/or Sublease; and (iii) any default
of Tenant under the Sublease.
<PAGE> 10
B. In the event Master Landlord has terminated the Master Lease, and has
not elected, in writing prior to the effective date of termination of
said Master Lease, to allow Subtenant to remain in the Sublet Premises
as set forth above, said Sublease shall terminate co-terminously with
the effective termination of the Master Lease automatically, without
notice, and Subtenant and/or Tenant, jointly and severally, shall
surrender the Sublet Premises to Master Landlord in good condition and
repair as of the effective termination of the Master Lease, with Master
Landlord having no obligation or liability whatsoever to Subtenant by
reason of or in connection with such early termination of the Master
Lease. In the event Subtenant and/or Tenant fails to timely surrender
the Sublet Premises to Master Landlord in good condition and repair as
of the date the Master Lease terminates, Subtenant and/or Tenant,
jointly and severally, shall be liable to Master Landlord in such event
for all damages, costs, claims, losses, liabilities, fees or expenses
sustained by Master Landlord, including, but not limited to, loss of
rental income, attorney's fees and court costs resulting from or in
connection with Subtenant's failure to timely vacate the Sublet Premises
and surrender the Sublet Premises to Master Landlord as of the effective
termination date of said Master Lease.
C. As a condition to Landlord's consent to the Sublease, by execution of
this Consent to Sublease, Subtenant hereby agrees to be bound by the
following provision in relation to both Tenant and Master Landlord:
If Master Landlord and Tenant jointly and voluntarily elect, for
any reason whatsoever, to terminate the Master Lease prior to the
scheduled Master Lease Termination Date, then this Sublease (if
then still in effect) shall terminate concurrently with the
termination of the Master Lease. Subtenant expressly acknowledges
and agrees that (1) the voluntary termination of the Master Lease
by Master Landlord and Tenant and the resulting termination of this
Sublease shall not give Subtenant any right or power to make any
legal or equitable claim against Master Landlord or Tenant,
including without limitation any claim for interference with
contract or interference with prospective economic advantage, and
(2) Subtenant hereby waives any and all rights it may have under
law or at equity to challenge such an early termination of the
Sublease, and unconditionally releases and relieves Master Landlord
and Tenant, and their officers, directors, employees and agents,
from any and all claims, demands, and/or causes of action
whatsoever (collectively, "Claims"), whether such matters are known
or unknown, latent or apparent, suspected or unsuspected,
foreseeable or unforeseeable, which Subtenant may have arising out
of or in connection with any such early termination of this
Sublease. Subtenant knowingly and intentionally waives any and all
protection which is or may be given by Section 1542 of the
California Civil Code which provides as follows: "A general release
does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement
with
<PAGE> 11
debtor."
The term of this Sublease is therefore subject to early
termination. Subtenant's initials here below evidence (a)
Subtenant's consideration of and agreement to this early
termination provision, (b) Subtenant's acknowledgment that, in
determining the net benefits to be derived by Subtenant under the
terms of this Sublease, Subtenant has anticipated the potential for
early termination, and (c) Subtenant's agreement to the general
waiver and release of Claims above.
Initials: /s/ CS Initials: /s/ RS
------------------ ------------------
Subtenant Tenant
6. In consideration of Master Landlord's consent to the Sublease, Tenant
irrevocably assigns to Master Landlord, as security for Tenant's
obligations under this Lease, all rent and income payable to Tenant
under the Sublease. Therefore Master Landlord may collect all rent due
under the Sublease and apply it towards Tenant's obligations under the
Master Lease. Tenant and Subtenant agree to pay same to Master Landlord
upon demand without further consent of Tenant and Subtenant required;
provided, however, that until the occurrence of a default by Tenant
under the Master Lease, Tenant shall have the right to collect such
rent. Tenant hereby irrevocably authorizes and directs Subtenant, upon
receipt of a written notice from Master Landlord stating that a default
exists in the performance of Tenant's obligations under the Master
Lease, to pay to Master Landlord the rents due and to become due under
the Sublease. Tenant agrees that Subtenant shall have the right to rely
on any such statement and request from Master Landlord, and that
Subtenant shall pay such rents to Master Landlord without any obligation
or right to inquire as to whether such default exists and
notwithstanding any notice or claim from Tenant to the contrary. Tenant
shall have no right or claim against Subtenant or Master Landlord for
any such rents so paid by Subtenant to Master Landlord. It is further
agreed between the parties hereto that neither Tenant's assignment of
such rent and income, nor Master Landlord's acceptance of any payment of
rental or other sum due by Subtenant to Tenant under said sublease,
whether payable directly to Master Landlord or endorsed to Master
Landlord by Tenant, shall in any way nor in any event be construed as
creating a direct contractual relationship between Master Landlord and
Subtenant, unless the Parties expressly so agree in writing and such
acceptance shall be deemed to be an accommodation by Master Landlord to,
and for the convenience of, Tenant and Subtenant. Any direct contractual
agreement between Master Landlord and Subtenant must be in writing.
7. Pursuant to the provisions of Paragraph 19 entitled "Assignment and
Subletting" of the Master Lease, Master Landlord hereby requires Tenant
to pay to Master Landlord, as Additional Rent, all rents and/or
additional consideration received by Tenant from said
<PAGE> 12
Subleasein excess of the Basic Rent payable to Master Landlord in said
Lease (hereinafter referred to as "Excess Rent"); provided, however,
that prior to paying to Landlord such Excess Rent, Tenant shall first be
entitled to recover from such Excess Rent the amount of all reasonable
leasing commissions paid by Tenant related to this Sublease to third
party brokers not affiliated with Tenant. Tenant and Subtenant
acknowledge that any Excess Rent is owed to Master Landlord and Tenant
hereby agrees to pay any Excess Rent to Master Landlord as due under
said Sublease. Tenant and Subtenant represent and warrant to Master
Landlord that: (1) the information to be completed and provided by
Tenant and Subtenant on the attached Exhibit B "Summary of
Amounts/Consideration to be Paid by Subtenant" accurately represents
amounts to be paid by Subtenant under said Sublease; (2) no additional
consideration is due Tenant under said Sublease, other than the
additional consideration (if any) identified on Exhibit B; and (3) no
changes in the terms and/or conditions of said Sublease shall be made
without Master Landlord's prior written approval.
8. This Consent is conditional upon Master Landlord's receipt of Master
Landlord's reasonable costs and attorney's fees, to which Master
Landlord is entitled under Paragraph 19 of the Master Lease. Tenant
shall pay such fees and costs to Landlord, pursuant to the invoice
provided to Tenant by Landlord with this Consent, upon execution of this
Consent by Tenant and Subtenant.
9. This Consent to Sublease shall only be considered effective, and Master
Landlord's consent to the Sublease given, when (i) Landlord receives
payment from Tenant of Landlord's costs, and (ii) this Letter Agreement
is executed by Master Landlord, Tenant, and Subtenant, and Guarantors
(if any) under the Master Lease.
Please execute this letter in the space provided below, obtain the signature of
Subtenant, and return all copies to our office no later than December 21, 1999.
IN THE EVENT TENANT FAILS TO RETURN THE FULLY EXECUTED DOCUMENTS TO LANDLORD BY
DECEMBER 21, 1999, THIS CONSENT SHALL BE AUTOMATICALLY RESCINDED, IN WHICH
EVENT, TENANT SHALL BE REQUIRED TO RESUBMIT ITS REQUEST IN THE EVENT TENANT
DESIRES TO GO FORWARD WITH SAID SUBLEASE. A fully executed copy will be returned
to you after execution by the Master Landlord.
Very truly yours,
PEERY/ARRILLAGA
By /s/ JOHN ARRILLAGA
-----------------------------------
John Arrillaga
(SIGNATURES CONTINUED ON FOLLOWING PAGE)
<PAGE> 13
THE UNDERSIGNED Tenant and Subtenant do hereby jointly and severally agree to
the terms and conditions of this Consent to Sublease.
TENANT: SUBTENANT:
TRANSMETA CORPORATION MOSCAPE, INC.
a California corporation a Delaware corporation
By /s/ R. STILLER By /s/ C. SOMANATHAN
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Print Name R. Stiller Print Name C. Somanathan
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Title Vice President Title Vice President
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